Should we register our marriage in Indonesia?

 

Very short answer: YES.

We know many expatriate / Indonesian couples, however, including some well-educated Western lawyers, who have not registered their marriages.

We hear various combinations of reasons, some based on belief in the Expat Spouse Law and fear that listing a foreign marriage in Indonesia would cause government officials to target a couple’s property for confiscation. But other couples may simply have a general fear of law and government offices in Indonesia, with the consequent idea that the less the government knows about you, the better.

We know a Western lawyer in Jakarta with an Indonesian wife. They wrote up a prenuptial to enable the wife to purchase and own property, but then did not register their marriage at the Civil Office (Kantor Catatan Sipil). “To make it safer” the lawyer told me, although I never understood exactly how that would make them safer.

General distrust of the law and government officials is probably healthy, and keeping a low profile where possible is often wise. But for a marriage, whether taking place in Indonesia or overseas, registration would be smart.

To deal with the fear factor first: the idea that officials troll the records of the Kantor Catatan Sipil and Kantor Agama (for Islamic marriages) to find mixed couples, then somehow track down whether those couples have Prenuptial Agreements (which would be held at private Notaris offices with no indication in the registration records about who that Notaris might be), and then after failing to find such agreements institute legal proceedings to confiscate their properties, is ludicrous.

To begin with, the organization needed to do such a thing is unrealistic. Second, it doesn’t happen. And third, there is no Expat Spouse Law.

To the objection that “well, it hasn’t happened yet, but it might someday,” once again, there is no Expat Spouse Law.

As to the general fear of government officials, in this case it is outweighed by the benefits of registering your marriage.

 

Registration of marriage and paternity

Prior to 2012, failure to register a marriage had a catastropic effect on paternity.

According to Undang-Undang No 1 Tahun 1994 Tentang Perkawinan Sections 42 and 43

The legal status of children born outside a registered marriage was anak haram or bastards. Fathers had no paternal rights.

The Mahkamah Konstitusi or Indonesian Constitutional Court in February 2012 invalidated Article 43(1) of the law on marriages.

Implications of the cancellation of Article 43(1) are still filtering down.

Other regulations allow mothers of children born out of wedlock to acknowledge paternity if marriage takes place after a child’s birth, but not entirely clearly what happens if the mother refuses to acknowledge paternity.

Fathers can also gain recognition of paternity through DNA testing and court order.

These processes can be aggravating and expensive, but they can be done.

Still, it would be so much easier to avoid these headaches by registering your marriage.

 

How do we register a marriage?

Earlier we discussed the vagueness of the Regulations No. 1 1974 Regarding Marriage, formalism in Indonesian law, conditions of inter-religious marriage, and the difference between “legal marriage” and “marriage with the force of law”.

To summarize, Regulations No. 1 1974 Regarding Marriage are unclear about how inter-religious marriages may take place. For that reason, maybe somewhat analogous to the confusion which causes some notaris to reject property transactions for expatriate / Indonesian couples without a prenuptial agreement, many or maybe most Kantor Catatan Sipil and Kantor Agama clerks will not register mixed-religious marriages taking place in Indonesia.

That said, we know a former justice of the Mahkamah Agung who is Muslim and his wife who is Christian, and they are legally (and happily) married, and the marriage is registered properly at the Kantor Catatan Sipil so it is also a marriage with the force of law. When we asked him how he did this, he said “because mixed marriages aren’t illegal, the only problem is registering them, and I am a judge.” By which he apparently meant he knew how talk to the clerk to get it registered.

Of course mixed marriages aren’t illegal, because marriages taking place in other countries are legal in Indonesia as long as they are legal in that foreign country. If you bring a foreign marriage to the Kantor Catatan Sipil, they will register it regardless of religions.

 

If I fail to register my foreign marriage, is it still a legal marriage?

We talked earlier about the importance of jurisprudence in Indonesia law (and the Civil Law tradition in general). The following answers depend upon jurisprudence which has been tested repeatedly and confirmed in actual court decisions.

Yes, a foreign marriage is legal and has the force of law in Indonesia from the moment the foreign marriage takes place, whether it is registered in Indonesia or not.

This is in consequence of international law, also in consequence of Regulations No. 1 1974 Regarding Marriage:

Or in English:

Note that this also applies to “a marriage that takes place outside Indonesia between two Indonesian citizens.” Indonesia follows international law and recognizes marriages taking place in other nations according to the laws of that nation. There is no restriction on religion even for Indonesian citizens. The problem in Indonesia is registration.

Now you could propose the caveat that the meaning sah or “legal” in this case is unclear, that it doesn’t distinguish whether this means “legal marriage” or “a marriage with the force of law”. In fact those terms don’t show up in the Regulations Regarding Marriage No 1 1974. They were apparently developed later in attempts to explain the meaning and consequences of the 1974 laws. But by jurisprudence and actual court decisions, this does mean “a marriage with the force of law”.

 

If I fail to register my Indonesian marriage, is it still a legal marriage?

Meaning what, exactly? “Legal marriage” yes, but “a marriage with the force of law”, maybe not.

Legal marriage in this case means that you are not committing a sin by having sex together, that you cannot be arrested for extra-marital sex with your legal marriage partner, that your mesjid or church or pura recognizes your marriage and children.

But regarding other important legal aspects, it is not “a marriage with the force of law”, and so the government of Indonesia and the Indonesian courts do not fully recognize your marriage and children.

Although Indonesian law requires belief in God through officially recognized religions, this does not mean that the government and Indonesian law are entirely in synchrony with the various religious institutions, which are in any case certainly not in agreement with one another.

Estimates are, by the way, that about 60% of marriages in Indonesia are not registered at the government offices. Issues arising from divorce, paternity, and inheritance are generally handled through the local religious organizations or adat.

However, if you are reading this website, issues arising from your marriage will almost certainly be handled through the Indonesian court system and that includes the Religious Court or Pengadilan Agama for Islamic marriages. So Indonesian law applies to you.

What happens if we fail to register our marriage within the specified time period?

Either nothing, or disaster.

Section 56 of the Regulations No 1 1974 Regarding Marriage as above go on to say:

Or in English:

The regulations specify that marriages taking place in Indonesia must be registerd within 60 days.

As so often the case with written law in Indonesia, the meaning is vague. Does it mean that failing registration, the marriage doesn’t exist, or is it cancelled, or is this only an administrative requirement?

It is administrative. Multiple court decisions make clear that this is a recommendation which could incur financial penalities if marriages are late in registration. More recent legislation has specified more clearly that this is adminstrative and sets out the schedule of penalties.

The problem comes from possible mischief caused by unregistered marriages.

In a very personal case recounted in Eleven Demons, an Indonesian wife at some point began to imagine that failure to register the marriage was tantamount to an automatic secret divorce of which her husband remained unaware. The damage to the family arising from her and her family’s schemes to then concoct a false marriage led to events which threatened to end in murder.

Further mischief can be caused by lawyers, police, judges, and others who claim that failure to register the marriage or late registration of the marriage has other imaginative legal ramifications.

As so often happens, the combination of vague regulations plus low educational standards regarding law plus greed can encourage plots which may spin wildly out of control. Registering the marriage removes temptation by shutting the door on some of these schemes.

Also note the conditions for marriage and divorce:

Or in English:

 

The final line “these Regulations are based upon the principle to make it difficult to achieve a divorce, there must be specific reason, and it must be done through a hearing in a court of law,” requires that a divorce “with the force of law” must act upon a marriage “with the force of law,” meaning that your marriage must be registered before it can be divorced.

Trying to do this in the midst of a divorce while the opposing party has cooked up a scheme involving failure to register the marriage is an aggravation you should do without.

 

In conclusion...

There is no downside to registering your marriage. Failure to register can encourage mischief which can end in absolute disaster. Please register your marriage.